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[Federal Register Volume 77, Number 236 (Friday, December 7, 2012)]
[Rules and Regulations]
[Pages 72970-72975]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29688]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[EPA-HQ-OW-2012-0195; FRL-9758-9]
RIN 2040-AF42

Revisions to Stormwater Regulations To Clarify That an NPDES 
Permit Is Not Required for Stormwater Discharges From Logging Roads

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is revising its Phase I stormwater regulations to 
clarify that stormwater discharges from logging roads do not constitute 
stormwater discharges associated with industrial activity and that a 
National Pollutant Discharge Elimination System (NPDES) permit is not 
required for these stormwater discharges.

DATES: This final rule is effective on January 7, 2013.

ADDRESSES: The record for this rulemaking is available for inspection 
and copying at the Water Docket, located at the EPA Docket Center (EPA/
DC), EPA West 1301 Constitution Avenue NW., Washington, DC 20004. The 
record is also available via the EPA Dockets at http://www.regulations.gov under docket number EPA-HQ-OW-2012-0195.

FOR FURTHER INFORMATION CONTACT: For further information on this 
notice, you may contact Jeremy Bauer, EPA Headquarters, Office of 
Water, Office of Wastewater Management via email at 
bauer.jeremy@epa.gov or telephone at 202-564-2775.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Applicability

    This action does not impose requirements on any entity. The action 
clarifies the status of stormwater discharges from logging roads. Those 
with an interest in such discharges may be interested in this action. 
If you have questions regarding the applicability of this rule, consult 
the person listed in the preceding FOR FURTHER INFORMATION CONTACT 
section.

B. Copies of This Document and Other Information

    This document is available for download at http://www.epa.gov/npdes/stormwater/forestroads or under docket EPA-HQ-OW-2012-0195.

II. Background

A. Purpose

    The EPA is promulgating this final rule to address the stormwater 
discharges identified under Northwest Environmental Defense Center v. 
Brown, 640 F.3d 1063 (9th Cir. 2011) (NEDC).
    The final rule clarifies that, for the purposes of assessing 
whether stormwater discharges are ``associated with industrial 
activity,'' the only facilities under SIC code 2411 that are 
``industrial'' are: rock crushing, gravel washing, log sorting, and log 
storage. This clarifies, contrary to the Ninth Circuit's decision in 
NEDC, that discharges of stormwater from silviculture facilities other 
than the four specifically named silviculture facilities identified 
above do not require an NPDES permit.\1\
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    \1\ This rulemaking responds to the uncertainty created by the 
Ninth Circuit's holding in NEDC that certain channeled discharges of 
stormwater from logging roads constitute point source discharges, 
bringing them within the Section 402 NPDES permitting framework. 
This final rule, by clarifying what constitutes a discharge 
``associated with industrial activity,'' makes clear that such 
discharges do not require NPDES permits even if they are point 
source discharges. We note that the Supreme Court has granted review 
of the NEDC case for the October 2012 term.

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[[Page 72971]]

B. Statutory Authority and Regulatory History

    The objective of the Clean Water Act is to restore and maintain the 
chemical, physical, and biological integrity of the nation's waters. 33 
U.S.C. 1251(a). To that end, the Act provides that the discharge of any 
pollutant by any person shall be unlawful, except in compliance with 
other provisions of the statute. Generally, the Act provides for a 
permit program for the addition to waters of the United States of a 
pollutant from a point source, defined as ``any discernible, confined 
and discrete conveyance, including but not limited to any pipe, ditch, 
channel, tunnel, conduit, well, discrete fissure, container, rolling 
stock, concentrated animal feeding operation, or vessel or other 
floating craft, from which pollutants are or may be discharged.'' 33 
U.S.C. 1362(14). In 1987 Congress amended the Clean Water Act by adding 
section 402(p), that created a temporary moratorium on NPDES permits 
for stormwater discharges, except for certain listed categories, and 
gave the EPA discretion to designate other stormwater discharges for 
regulation. 33 U.S.C. 1342(p).
    For the initial phase, section 402(p)(1) created a temporary 
moratorium on NPDES permits for stormwater discharges from point 
sources except for those listed in section 402(p)(2), which includes 
discharges for which a permit had already been issued; discharges from 
large municipal separate storm sewer systems; and ``industrial 
discharges.'' Congress did not define industrial discharges, allowing 
the EPA to define the term. For subsequent phases, section 402(p)(5) 
directs the EPA to conduct studies, in consultation with the states, 
for ``identifying those stormwater discharges or classes of stormwater 
discharges for which permits are not required''; ``determining to the 
maximum extent practicable, the nature and extent of pollutants in such 
discharges''; and ``establishing procedures and methods to control 
stormwater discharges to the extent necessary to mitigate impacts on 
water quality.'' Section 402(p)(6) directs the Agency to issue 
regulations, in consultation with state and local officials, based on 
such studies. The section allows the EPA flexibility in issuing 
regulations to address designated stormwater discharges where 
appropriate and does not require the use of NPDES permits or any 
specific regulatory approach. Specifically, the section states that the 
regulations ``shall establish priorities, establish requirements for 
state stormwater management programs, and establish expeditious 
deadlines'' and may include ``performance standards, guidelines, 
guidance, and management practices and treatment requirements, as 
appropriate.'' 33 U.S.C. 1342(p)(6). This flexibility is unique to 
stormwater discharges and is different than the treatment of stormwater 
discharges listed in section 402(p)(2)(B) of the Act, which requires a 
permit for a stormwater discharge ``associated with industrial 
activity.''
    Prior to the 1987 Amendments, there were numerous questions 
regarding the appropriate means of regulating stormwater discharges 
within the NPDES program due to the water quality impacts of 
stormwater, the variable nature of stormwater, the large number of 
stormwater discharges, and the limited resources of permitting 
agencies. The EPA undertook numerous regulatory actions, which resulted 
in extensive litigation, in an attempt to address these unique 
discharges.
    The EPA's Silvicultural Rule (40 CFR 122.27) predates the 1987 
amendments to the Clean Water Act that created section 402(p) for 
stormwater controls. The Agency defined silvicultural point source as 
part of the Silvicultural Rule to specify which silvicultural 
discharges were to be included in the NPDES program. The rule defines 
silvicultural point source to mean any ``discernible, confined and 
discrete conveyance related to rock crushing, gravel washing, log 
sorting, or log storage facilities which are operated in connection 
with silvicultural activities and from which pollutants are discharged 
into waters of the United States'' and further explains that ``the term 
does not include non-point source silvicultural activities such as 
nursery operations, site preparation, reforestation and subsequent 
cultural treatment, thinning, prescribed burning, pest and fire 
control, harvesting operations, surface drainage, or road construction 
and maintenance from which there is natural runoff.''
    In 1990, following the 1987 amendments that directed the Agency to 
develop regulations requiring permits for large municipal separate 
storm sewer systems and stormwater ``discharges associated with 
industrial activity,'' the EPA promulgated the Phase I stormwater 
regulations. (55 FR 47990, November 16, 1990). The EPA defined in the 
Phase I regulations ``storm water discharge associated with industrial 
activity'' which is not defined by the Act. In describing the scope of 
the term ``associated with industrial activity,'' several members of 
Congress explained in the legislative history that the term applied if 
a discharge was ``directly related to manufacturing, processing or raw 
materials storage areas at an industrial plant.'' (Vol. 132 Cong. Rec. 
H10932, H10936 (daily ed. October 15, 1986); Vol. 133 Cong. Rec. H176 
(daily ed. January 8, 1987)). The Phase I rule clarified the regulatory 
definition of ``associated with industrial activity'' by adopting the 
language used in the legislative history and supplementing it with a 
description of various types of areas (e.g., material handling sites, 
sites used for the storage and maintenance of material handling 
equipment, etc.) that are directly related to an industrial process and 
to industrial facilities identified by the EPA. The supplemental 
language in the Phase I rule also includes the term ``immediate access 
road.'' The EPA considers ``immediate access roads'' to refer to roads 
which are exclusively or primarily dedicated for use by the industrial 
facility. See 55 FR 47990, 48009 (Nov. 16, 1990). These ``immediate 
access roads'' do not include public access roads that are state, 
county, or federal roads such as highways or Bureau of Land Management 
roads which happen to be used by the facility. See id. The Phase I 
regulation defines the term ``storm water discharge associated with 
industrial activity'' to include stormwater discharges from facilities 
identified in the rule by standard industrial classification or ``SIC'' 
code at 40 CFR 122.26(b)(14). The Phase I regulation included in the 
definition of that term SIC code 24 (Lumber and Wood Products) which 
includes 2411 (logging), but the Agency also had specified in the Phase 
I rule that the term does not include discharges from facilities or 
activities excluded from the NPDES program under other parts of the 
EPA's regulations, including the Silvicultural Rule. As discussed 
above, the EPA had previously specified under the Silvicultural Rule 
which silvicultural discharges were to be included in the NPDES program 
(40 CFR 122.27). The EPA intended to regulate those same 
``silvicultural point source[s]'' under the Phase I rule (i.e., rock 
crushing, gravel washing, log sorting, and log storage facilities) and 
to exclude from the Phase I regulation stormwater runoff from other 
silvicultural activities. For the ``silvicultural point source[s]'' 
(i.e., rock crushing, gravel washing, log sorting, and log storage 
facilities) regulated

[[Page 72972]]

under the Phase I rule, the term ``storm water discharge associated 
with industrial activity'' includes ``immediate access roads'' (40 CFR 
122.26(b)(14)(ii)). Unlike ``immediate access roads'' associated with 
industrial facilities, many logging roads have multiple uses, including 
recreation and general transportation, and commonly extend over long 
distances (i.e.; may not provide ``immediate access'' to an industrial 
site). The intent of the EPA in this rulemaking is that the NPDES 
program requirements be implemented with regard to ``immediate access 
roads'' in the same way they were implemented prior to the decision by 
the Ninth Circuit.
    In developing the second phase of stormwater regulations, the EPA 
submitted to Congress in March 1995 a report that presented the nature 
of stormwater discharges from municipal and industrial facilities that 
were not already regulated under the Phase I regulations (U.S. 
Environmental Protection Agency, Office of Water. 1995. Storm Water 
Discharges Potentially Addressed by Phase II of the National Pollutant 
Discharge Elimination System Storm Water Program: Report to Congress. 
Washington, DC. EPA 833-K-94-002). On December 8, 1999, the EPA 
published the Phase II stormwater regulations to address stormwater 
discharges from small municipal separate storm sewer systems and 
construction sites that disturb one to five acres. (64 FR 68722, 
December 8, 1999). The EPA retains the authority to designate 
additional stormwater discharges for regulation at a later date under 
either CWA section 402(p)(2)(E) or 402(p)(6).
    The Phase II regulations for stormwater controls were challenged in 
Environmental Defense Center v. US EPA, 344 F.3d 832 (9th Cir. 2003) 
(EDC v. EPA). In that case, petitioners contended that the EPA 
arbitrarily failed to regulate discharges from forest roads under the 
Phase II rule. The court held that the EPA failed to consider the 
petitioners' comments and remanded the issue to the EPA ``so that it 
may consider in an appropriate proceeding Petitioner's contention that 
Sec.  402(p)(6) requires the EPA to regulate forest roads. The EPA may 
then either accept Petitioners' arguments in whole or in part, or 
reject them on the basis of valid reasons that are adequately set forth 
to permit judicial review.'' Id. at 863.
    More recently, in Northwest Environmental Defense Center v. Brown, 
640 F.3d 1063 (9th Cir. 2011) (NEDC), a citizen suit was filed alleging 
violations of the Clean Water Act for discharging stormwater from 
ditches alongside two logging roads in state forests without a permit. 
The court held that because the stormwater runoff from the two roads in 
question is collected by and then discharged from a system of ditches, 
culverts and channels, there was a point source discharge of industrial 
stormwater for which an NPDES permit is required. As discussed above, 
the Agency specified in the Phase I rule that the term ``storm water 
discharge associated with industrial activity'' does not include 
discharges from facilities or activities excluded from the NPDES 
program under other parts of the EPA's regulations, including the 
aforementioned Silvicultural Rule. The EPA intends through this 
regulation to more clearly limit Phase I applicability to only those 
silvicultural facilities that are ``rock crushing, gravel washing, log 
sorting, and log storage facilities.''
    In response to the partial remand under Environmental Defense 
Center, Inc. (EDC) v. US EPA, 344 F.3d 832 (9th Cir. 2003), the Agency 
continues to review available information on the water-quality impacts 
of stormwater discharges from forest roads, which include logging roads 
as discussed above, as well as existing practices to control those 
discharges and is considering a range of options to address such 
discharges, which could include designating a subset of stormwater 
discharges from forest roads for regulation under the Agency's section 
402(p) rulemaking authority. The EPA believes that the broad range of 
flexible approaches under section 402(p)(6) may be well suited to 
address the complexity of forest road ownership, management, and use.
    In the interim, the EPA notes that Congress has directed that 
permits are not required for stormwater discharges for logging roads. 
Under the continuing resolution passed in September, 2012, until March 
27, 2013, the Administrator may not require an NPDES permit or directly 
or indirectly require any state to require a permit, for discharges of 
stormwater runoff from roads, the construction, use, or maintenance of 
which are associated with silvicultural activities.

III. EPA's Proposed Revisions and Public Comments Received on Proposed 
Rule

A. Proposed Revisions

    The EPA proposed to revise 40 CFR 122.26(b)(14)(ii) to clarify that 
for the purposes of defining stormwater discharges associated with 
industrial activity, the only activities under SIC code 2411 that are 
``industrial'' are rock crushing, gravel washing, log sorting, and log 
storage. This revision does not remove any existing exemptions. Though 
the existing language in 40 CFR 122.26(b)(14)(ii) excepts SIC code 
2434, wood kitchen cabinets, the wood kitchen cabinets category remains 
covered in a separate subsection. See id. at 122.26(b)(14)(xi) (listing 
``Facilities covered under Standard Industrial Classifications 20, 21, 
22, 23, 2434 * * *'' as engaging in industrial activity for purposes of 
the industrial stormwater regulations).

B. Public Comments

    The EPA received 85 comment letters on its ``Notice of Proposed 
Revisions to Stormwater Regulations to Clarify That an NPDES Permit is 
not Required for Stormwater Discharges From Logging Roads'' (77 FR 
53834, September 4, 2012). The Agency had previously announced its plan 
to propose these revisions in an earlier notice, ``Notice of Intent to 
Revise Stormwater Regulations To Specify That an NPDES Permit is Not 
Required for Stormwater Discharges From Logging Roads and To Seek 
Comment on Approaches for Addressing Water Quality Impacts From Forest 
Road Discharges'' (77 FR 30473, May 23, 2012). While the EPA has 
reviewed and is considering the comments received in response to the 
May 23 Notice of Intent, the Agency explained in its September 4 
proposal that the EPA is not developing responses to those comments as 
part of this rulemaking.
    The EPA has reviewed and considered all of the comments received on 
the proposed revisions. Many commenters expressed support for the EPA's 
proposal. Most agreed with the objective to clarify the applicability 
of Phase I stormwater regulations but some suggested alternate language 
or approaches to reach that objective. For example, some suggested that 
the EPA simply state in its regulations that stormwater discharges from 
logging roads do not require a NPDES permit. Others recommended that 
the EPA assert that logging roads are nonpoint sources and therefore 
would not require a NPDES permit.
    The EPA believes that the final language clarifies the 
applicability of Phase I stormwater regulations to stormwater 
discharges from logging roads. The final language indicates explicitly 
which facilities are included in the definition of stormwater 
discharges ``associated with industrial activity'' (i.e., ``Facilities 
classified within Standard Industrial Classification 24, Industry Group 
241

[[Page 72973]]

that are rock crushing, gravel washing, log sorting, or log storage 
facilities operated in connection with silvicultural activities''). 
Moreover, the final language further explains that ``not included are 
all other types of silvicultural facilities.''
    Many commenters suggested that the EPA delay finalizing the rule 
until after the Supreme Court rules on Decker v. Northwest 
Environmental Defense Center, No. 11-388, and Georgia-Pacific West v. 
Northwest Environmental Defense Center, No. 11-347. Some suggested that 
the Agency should have sought relief from the Supreme Court or 
Congress. The EPA disagrees with these commenters because today's 
action ends any uncertainty created by the Ninth Circuit's holding in 
NEDC administratively by clarifying what constitutes a discharge 
``associated with industrial activity'' in connection with 
silvicultural activities. By moving to finalize this rule 
expeditiously, the EPA is providing the regulatory certainty needed in 
the wake of the Ninth Circuit's decision and is reaffirming the EPA's 
long-standing regulatory position regarding the applicability of 
stormwater regulations to logging roads. In doing so, this final rule 
cancels out any on-the-ground impact of the Ninth Circuit's decision. 
Further, the EPA actions are consistent with amicus curiae briefs filed 
by the United States Department of Justice (DOJ) on May 24 and again on 
September 4, which described to the public and to the Supreme Court the 
administrative steps that the EPA would take to clarify 
``expeditiously'' that an NPDES permit is not required for stormwater 
discharges from logging roads.
    Some commenters disagreed with the EPA's proposal, asserting that 
at least a subset of stormwater discharges from logging roads is truly 
industrial in nature and that those discharges should require NPDES 
permits. The EPA clarifies the applicability of Phase I stormwater 
regulations to stormwater discharges from logging roads and the 
Agency's rationale in section II.B of this preamble. As the EPA notes, 
the Agency did not intend logging roads themselves to be regulated as 
industrial facilities and its view has not changed since EPA first 
issued the Phase I stormwater rule. The EPA is revising that rule to 
clarify the Agency's original intent.
    Some commenters asserted that the water quality impacts of 
stormwater discharges from logging roads and other forest roads are 
well-documented and suggested that the Agency should regulate them. 
Other commenters pointed to existing programs and suggested that a 
national regulation is unnecessary. Some asserted that existing state, 
federal, and tribal programs are insufficient to protect water quality. 
Others commented that the Agency already has all of the information it 
needs in order to regulate stormwater discharges from forest roads and 
suggested that if information gaps remain, the Agency should specify 
what information is needed and indicate on what schedule that 
information will be collected.
    The EPA is not proposing new regulations for stormwater discharges 
from forest roads, including logging roads, at this time. While the EPA 
has not developed a specific schedule for addressing stormwater 
discharges from forest roads, the Agency notes that, in response to the 
partial remand under EDC v. US EPA, the Agency continues to review 
available information on the water quality impacts of stormwater 
discharges from forest roads, which include logging roads, as well as 
existing practices to control those discharges and is considering a 
range of options to address such discharges, which could include 
designating a subset of stormwater discharges from forest roads for 
regulation under the Agency's section 402(p) rulemaking authority. The 
EPA believes that the broad range of flexible approaches under section 
402(p)(6) may be well-suited to address the complexity of forest road 
ownership, management, and use.

IV. Final Rule

    The EPA has made no revisions to the proposed rule. The EPA is 
revising 40 CFR 122.26(b)(14)(ii) to clarify that for the purposes of 
defining stormwater discharges associated with industrial activity, the 
only activities under SIC code 2411 that are ``industrial'' are rock 
crushing, gravel washing, log sorting, and log storage. This revision 
does not remove any existing exemptions. Though the existing language 
in 40 CFR 122.26(b)(14)(ii) excepts SIC code 2434, wood kitchen 
cabinets, the wood kitchen cabinets category remains covered in a 
separate subsection. See id. at 122.26(b)(14)(xi) (listing ``Facilities 
covered under Standard Industrial Classifications 20, 21, 22, 23, 2434 
* * *'' as engaging in industrial activity for purposes of the 
industrial stormwater regulations.)
    As discussed in this preamble, the EPA did not intend logging roads 
themselves to be regulated as industrial facilities, but, in light of 
NEDC, the EPA is modifying 40 CFR 122.26(b)(14) to clarify the Agency's 
intent. The EPA believes that stormwater discharges from forest roads, 
including logging roads, should be evaluated under section 402(p)(6) of 
the Clean Water Act because the section allows for a broad range of 
flexible approaches, including non-permitting approaches, that may be 
better suited to address the complexity of forest road ownership, 
management, and use.

V. Economic Impact

    The final rule clarifies existing regulations and does not impose 
new regulatory requirements. As a result this action has no economic, 
public health, or environmental impacts.

VI. Statutory and Executive Order Review

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a ``significant regulatory action.'' Accordingly, the EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 
2011) and any changes made in response to OMB recommendations have been 
documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden 
as it serves only to clarify existing regulations. However, the Office 
of Management and Budget (OMB) has previously approved the information 
collection requirements contained in the existing regulations (40 CFR 
122.26) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. and has assigned OMB control number 2040-0004. The OMB 
control numbers for EPA's regulations in 40 CFR are listed in 40 CFR 
part 9.

C. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions. For purposes 
of assessing the impacts of today's rule on small entities, small 
entity is defined as: (1) A small business ``as defined by the Small 
Business Administration's (SBA)

[[Page 72974]]

regulations at 13 CFR 121.201;'' (2) a small governmental jurisdiction 
that is a government of a city, county, town, school district or 
special district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This rule 
will not impose any requirements on small entities. Rather, the rule 
clarifies that stormwater discharges from logging roads do not 
constitute stormwater discharges associated with industrial activity 
and that an NPDES permit is not required for these stormwater 
discharges.

D. Unfunded Mandates Reform Act (UMRA)

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. This action imposes no enforceable duty on any state, local or 
tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. This action 
clarifies existing regulations and has no economic impact. Thus, it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government as specified in Executive Order 13132 (64 FR 43255, November 
2, 1999).

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). Thus, Executive 
Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it is not economically significant as defined 
in Executive Order 12866. Moreover, this action clarifies existing 
regulations and has no economic, public health, or environmental 
impacts.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    The action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Additionally, the change does not 
involve the installation of treatment or other components that use a 
measurable amount of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs the EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs the EPA to provide 
Congress, through OMB, explanations when the EPA decides not to use 
available and applicable voluntary consensus standards.
    The action clarifies existing regulations and makes no change to 
existing standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission. 
Agencies must do this by identifying and addressing as appropriate any 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States.
    The EPA has determined that this action does not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The action clarifies existing regulations and has no 
economic, public health, or environmental impacts.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective January 7, 2013.

List of Subjects in 40 CFR Part 122

    Environmental protection, Water pollution control.

    Dated: November 30, 2012.
Lisa P. Jackson,
Administrator.

    For the reasons set out in the preamble, 40 CFR part 122 is amended 
as follows:

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

0
1. The authority citation for part 122 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

Subpart B--Permit Application and Special NPDES Program 
Requirements

0
2. Section 122.26 is amended by revising paragraph (b)(14)(ii) to read 
as follows:

Sec.  122.26  Storm water discharges (applicable to State NPDES 
programs, see Sec.  123.25).

* * * * *
    (b) * * *
    (14) * * *
    (ii) Facilities classified within Standard Industrial 
Classification 24, Industry Group 241 that are rock crushing, gravel 
washing, log sorting, or log storage facilities operated in connection 
with silvicultural activities defined in 40 CFR 122.27(b)(2)-(3) and 
Industry Groups 242 through 249; 26 (except 265 and 267), 28 (except 
283), 29, 311, 32 (except 323), 33, 3441, 373;

[[Page 72975]]

(not included are all other types of silviculture facilities);
* * * * *
[FR Doc. 2012-29688 Filed 12-6-12; 8:45 am]
BILLING CODE 6560-50-P
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